|
Public Highway At -Grade Crossing 06/01/10
<br />Standard Form Approved, AVP -Law
<br />BUILDING AMERICA Is
<br />B. Entry onto Railroad's Property by City. If the City's employees need to enter Railroad's property in order to perform
<br />an inspection of the Roadway, minor maintenance or other activities, the City shall first provide at least ten (10) working days
<br />advance notice to the Railroad Representative. With respect to such entry on to Railroad's property, the City, to the extent
<br />permitted by law, agrees to release, defend and indemnify the Railroad from and against any loss, damage, injury, liability,
<br />claim, cost or expense incurred by any person including, without limitation, the City's employees, or damage to any property or
<br />equipment (collectively the "Loss ") that arises from the presence or activities of City's employees on Railroad's property, except
<br />to the extent that any Loss is caused by the sole direct negligence of Railroad.
<br />C. Flagging.
<br />(i) If the City's employees need to enter Railroad's property as provided in Paragraph B above, the City agrees to
<br />notify the Railroad Representative at least thirty (30) working days in advance of proposed performance of any work by City in
<br />which any person or equipment will be within twenty -five (25) feet of any track, or will be near enough to any track that any
<br />equipment extension (such as, but not limited to, a crane boom) will reach to within twenty-five (25) feet of any track. No work
<br />of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), or thing(s) shall be
<br />located, operated, placed, or stored within twenty-five (25) feet of any of Railroad's track(s) at any time, for any reason, unless
<br />and until a Railroad flagman is provided to watch for trains. Upon receipt of such thirty (30) day notice, the Railroad
<br />Representative will determine and inform City whether a flagman need be present and whether City needs to implement any
<br />special protective or safety measures. If flagging or other special protective or safety measures are performed by Railroad,
<br />Railroad will bill City for such expenses incurred by Railroad. If Railroad performs any flagging, or other special protective or
<br />safety measures are performed by Railroad, City agrees that City is not relieved of any of its responsibilities or liabilities set
<br />forth in this Agreement.
<br />(ii) The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight -hour day for the
<br />class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in
<br />effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation, holiday, health
<br />and welfare, supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension, Employees
<br />Liability and Property Damage and Administration will be included, computed on actual payroll. The composite charge will be
<br />the prevailing composite charge in effect at the time the work is performed. One and one -half times the current hourly rate is
<br />paid for overtime, Saturdays and Sundays, and two and one -half times current hourly rate for holidays. Wage rates are subject
<br />to change, at any time, by law or by agreement between Railroad and its employees, and may be retroactive as a result of
<br />negotiations or a ruling of an authorized governmental agency. Additional charges on labor are also subject to change. If the
<br />wage rate or additional charges are changed, City shall pay on the basis of the new rates and charges.
<br />(iii) Reimbursement to Railroad will be required covering the full eight -hour day during which any flagman is
<br />furnished, unless the flagman can be assigned to other Railroad work during a portion of such day, in which event
<br />reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work.
<br />Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work
<br />on the project for which Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by
<br />assignment of such flagman to other work, even though City may not be working during such time. When it becomes
<br />necessary for Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining
<br />agreements, City must provide Railroad a minimum of five (5) days notice prior to the cessation of the need for a flagman. If
<br />five (5) days notice of cessation is not given, City will still be required to pay flagging charges for the five (5) day notice period
<br />required by union agreement to be given to the employee, even though flagging is not required for that period. An additional
<br />thirty (30) days notice must then be given to Railroad if flagging services are needed again after such five day cessation notice
<br />has been given to Railroad.
<br />D. Compliance With Laws. The City shall comply with all applicable federal, state and local laws, regulations and
<br />enactments affecting the work. The City shall use only such methods as are consistentwith safety, both as concerns the City,
<br />the City's agents and employees, the officers, agents, employees and property of the Railroad and the public in general. The
<br />City (without limiting the generality of the foregoing) shall comply with all applicable state and federal occupational safety and
<br />health acts and regulations. All Federal Railroad Administration regulations shall be followed when work is performed on the
<br />Railroad's premises. If any failure by the City to comply with any such laws, regulations, and enactments, shall result in any
<br />fine, penalty, cost or charge being assessed, imposed or charged against the Railroad, the City shall reimburse, and to the
<br />extent it may lawfully do so, indemnify the Railroad for any such fine, penalty, cost, or charge, including without limitation
<br />attorney's fees, court costs and expenses. The City further agrees in the event of any such action, upon notice thereof being
<br />provided by the Railroad, to defend such action free of cost, charge, or expense to the Railroad.
<br />Public Highway At -Grade Crossing 06/01/10 Page 3 of 5 Exhibit D
<br />Standard Form Approved, AVP -Law General Terms and Conditions
<br />
|